Redundancy or retaliation? The importance of proper consultation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case in which the worker argued that his dismissal, ostensibly due to redundancy, was retaliation for his complaints about unpaid wages and superannuation.
The case raised questions about the line between genuine redundancy and unfair dismissal, especially in the context of small businesses facing financial pressure. Evidence presented to the FWC showed that the worker had made several complaints to the Australian Taxation Office about unpaid superannuation. The worker stated that he had been threatened with dismissal on multiple occasions after making these complaints.
The FWC highlighted the importance of proper consultation and communication during the redundancy processes. In this case, the employer failed to consult with the worker about the potential redundancy or explore alternative options. This lack of consultation was a key factor in the FWC’s determination.
After considering all the evidence, the FWC determined that the dismissal was unfair, that there was no valid reason for the dismissal, and that it was harsh, unjust, and unreasonable. It said that the termination was harsh since it did not need to take place when it did, even though the employer faced financial pressures. It was unjust as it was implemented without regard to the worker’s rights in respect of payment of superannuation. The dismissal was unreasonable since there was no attempt to discuss any alternatives with the worker.
Legal action against Department of Justice over psychosocial impacts to employee
WorkSafe WA is taking legal action against WA’s Department of Justice after a female prison officer was allegedly bullied and sexually harassed while working at the Bunbury regional prison.
The prosecution alleges that the department failed to provide and maintain a safe work environment, thus causing serious harm to the worker. Alleged inappropriate behaviours included bullying, sexual harassment and victimisation, with the department lacking proper procedures to deal with such behaviour. The department faces a maximum penalty of $3.5m if the offence is proven. The matter is to be heard at the Bunbury Magistrates Court in November.
Under the WA Government’s Code of Practice, employers have a responsibility to manage risks to worker health and safety, including psychological wellbeing. With the introduction of new WHS regulations in WA in 2022, employers and PCBU’s are required to eliminate psychosocial risks in workplaces. This case marks the first time that WorkSafe WA has commenced prosecution action over psychosocial impacts to an employee.
NSW Police launches review into toxic culture within force
ABC News revealed last week that more than a dozen current and former NSW police officers have made allegations of bullying, nepotism, sexism and a lack of support for officers suffering from PTSD.
Since the story was published, dozens more officers have come forward with similar stories. They claim the toxic culture has contributed to an almost 20% shortfall in officers across the state.
One such officer is Mel Cooper, who was allegedly handcuffed to her desk and photographed by male officers on a night shift in 1994. She never reported the incident for fear of being targeted and ostracised. Ms Cooper says the NSW Police force is “still such a boys club” and that the force has consistently failed officers suffering from mental health issues. Another officer said he sought help from superiors due to mental health problems but was told he had a “bad attitude” and ordered to continue working, shortly after which he attempted suicide. Ms Cooper says she spoke out in hopes that it would drive change in the force, calling for a welfare command to proactively check in on officers, as well as an overhaul of the promotions and complaints system.
NSW Police have now brought in a former human rights commissioner to conduct an official review of the culture within the force. Police Commissioner Webb reports that the review will look for gaps in policies and procedures and may involve interviewing current and former officers.
Employer vindicated for reasonable management action
The NSW Health Secretary has successfully defended one of the longest running discrimination trials before the NSW Civil and Administrative Tribunal – Omila Bir v Secretary, Ministry of Health.
Ms Bir had a history of being combative and unpleasant toward those in management, including making up false accusations of discrimination and victimisation. Her complaints, when investigated, were found to be of no substance.
Ms Bir was frequently the subject of complaints from colleagues due to her absences, poor attendance, aggressive communication, and discourteous behaviour. In response, she often retaliated with exaggerated and false claims of discrimination and victimization. When facing serious disciplinary action, she lodged complaints under the Anti-Discrimination Act 1977 (NSW), leading to Tribunal proceedings.
The employer, Western Sydney Local Health District (WSLHD) was tasked with demonstrating that the baseless complaints were made by Ms Bir to deter those who were performance managing her.
The Tribunal found the management actions to be lawful and reasonable. Such actions included an independent medical examination, a performance improvement plan, investigation of misconduct allegations and written notifications about risk management concerns. This decision is a timely reminder to be fair but firm when dealing with vindictive serial workplace complainers.
Independent review at the ABC finds reports of racial discrimination
An independent review into the national broadcaster found that staff had experienced systemic racism, around employment conditions, pay discrepancies, recruitment, staff support and bullying.
The report found that staff responses “overwhelmingly” indicated that racism exists within the ABC workplace, with reports of both overt and covert racism. The report also found a lack of trust in current complaint systems, with the review calling for large scale reform. Of the 120 current and former ABC staff who identified as culturally and linguistically diverse, only one said they had not personally experienced racism within the organisation. The ABC’s managing director David Anderson has apologised to current and former ABC staff and said the review’s 15 recommendations will be accepted in principle. Some of these recommendations include:
- Improve responses to external attacks on staff
- Better representation at all levels of the organisation
- Organisation-wide training and training for managers to understand their obligations in ensuring a respectful workplace
- Improve the complaint management process
- Improve diversity of leadership
- Pay audit of all First Nations and diverse staff
WA Senator’s staffers come forward with bullying claims
A former staffer of WA Senator Dorinda Cox has gone public with allegations about her conduct, accusing the Senator of creating an aggressive and unhealthy work environment.
Lou Hendricks, the Senator’s former media advisor issued a statement on Friday detailing the impact of the alleged conduct. She stated that she tried to support colleagues experiencing bullying behaviours from Senator Cox whilst experiencing such behaviour herself. She alleged that staff were anxious and distressed, with some feeling suicidal. The environment was described as “unnecessarily aggressive… draining and unsustainable”.
These allegations mirror those of Elder Aunty Esther Montgomery last week, who described her two months working in Senator Cox’s office as a “nightmare”. Several other staff have provided accounts of aggressive and intimidating behaviour from the Senator toward staff.
It is reported that the Parliamentary Workplace Support Service (PWSS) have received complaints about the Senator from six former employees. Over 20 people have resigned from the Senator’s office since the beginning of her time in the Senate three years ago. Ms Hendricks said she spoke out in hopes that there would be some improvement in parliamentary workplace culture and systems. She reported that the PWSS took minimal action to help staff who came forward with complaints, aside from “listening, asking about self-care and talking about cultural diagnostics”.
It is now reported that officials from the Greens Party have issued Senator Cox a censure. Although this does not entail further punishment, it is considered highly embarrassing for the Senator and may affect her pre-selection if she decides to run for election again. The party has expressed their commitment to investigating the allegations and finding a fair outcome. These allegations highlight the need for effective procedures to deal with staff complaints, and the consequences of fostering a hostile work environment.
CFMEU official booted from worksites after FWC ruling
Joel Shackleton, a senior CFMEU official, faced significant consequences after threatening to kill an Indigenous labour hire business owner at a Victorian government Big Build Site in 2022.
As a result, the FWC revoked his union right of entry permit, effectively banning him from construction sites. Shackleton stands charged of making threats to kill and making threats to inflict serious injury, criminal offences which carry a maximum penalty of 10 years in prison. He has also been suspended from his union position.
Victorian Premier Jacinta Allen stated that “It’s not acceptable for these sorts of people to be on worksites, it’s not acceptable for this type of behaviour”. Shackleton’s actions highlighted a severe breach of workplace conduct, contributing to an unsafe and hostile environment. The CFMEU’s attempt to renew his permit was rejected, underscoring the importance of addressing workplace bullying and discrimination with severe penalties. Mr Shackleton is set to face the Magistrates Court in November.
